The harmful act in the civil liability of the agent of the State Cases Administration.
The harmful act constitutes the first element of tort liability. It is a positive or negative conduct that violates the law. Tort liability of the State Attorney is based primarily on damage, especially since the State Attorney is a public employee holding an official position and is not necessarily aware in the same way as professionals such as doctors, pharmacists, and others.
Damage in contractual liability differs in that it is not sufficient merely to oblige the person who caused it to pay compensation; rather, it must be established that the person breached a contractual obligation that led to the occurrence of the damage.
Fault is defined as: a breach of a legal duty, whether it is a specific obligation (which concerns contractual liability), or a general legal duty (in which case tort liability arises upon breach).
Many legislations do not define fault, relying instead on juristic definitions. Most definitions agree that fault is conduct contrary to the law, whether positive or negative. It consists of a material element (the harmful act) and a moral element (awareness or perception). Since the State Attorney is a public employee, the element of awareness is presumed to be present.
Therefore, fault is considered the first element of the liability of the State Attorney, and its absence results in the absence of liability. Fault must also be proven.
The law requires that the act constitutes fault, as liability is not a general rule unless fault exists. Jurists differ regarding the basis of liability: some consider it based on proven fault, others on presumed fault, while others attribute it to the theory of risk (guarantee), which replaced the theory of liability for others (vicarious liability).
Accordingly, fault is divided into two aspects:
- The nature of the fault of the State Attorney
- Proof of the fault of the State Attorney
First: The Nature of the Fault of the State Attorney
The nature of the fault determines liability. Professionals such as doctors and lawyers often make mistakes, yet their liability is generally contractual because they are obligated to provide professional services and are bound by an obligation of diligence.
In such cases, the injured party must prove fault, negligence, or lack of care.
Since the State Attorney is a public employee, the nature of his work requires a high degree of caution and vigilance to avoid mistakes, as all his actions form an essential part of litigation procedures.
If any fault occurs from the State Attorney that constitutes a breach of a legal duty and results in damage, two types of obligations may be distinguished:
- An obligation to achieve a result
- An obligation to exercise care and diligence
In obligations to achieve a result, fault is presumed once the debtor fails to perform the obligation, such as transferring a real right, refraining from an act, or delivering something.
Thus, the State Attorney’s liability arises if he is required to perform or refrain from an act and the expected result is not achieved, making him liable to the employer.
Alternatively, the breach may concern a non-specific obligation, such as an obligation of care derived from general legal duty. In obligations of result, fault is presumed once non-performance occurs, and the debtor cannot rebut this presumption unless he proves that non-performance was due to an external cause.
Article 448 of the Jordanian Civil Code No. 43 of 1976 states:
“The obligation is extinguished if the debtor proves that performance has become impossible due to an external cause beyond his control.”
In both cases, since the State Attorney is a public employee, the state is jointly liable with him once liability is established, based on the principle of vicarious liability. Fault is presumed on the part of the state as an exception to the general rule.
The basis of state liability lies in the fact that it performs its functions through its employees, whose acts are attributed to it. These employees are subject to error during their duties, which may cause harm to others.
In Jordanian law, state liability for the acts of others is based on the principle of guarantee (daman). The legislator intended this principle to form the basis of vicarious liability.
Fault must generally be proven; however, an exception exists in vicarious liability, where fault is presumed on the part of the superior due to poor selection, lack of supervision, or both.
Thus, the state bears liability for compensation due to its failure in selecting the State Attorney properly.
Conditions for State Liability:
- There must be a relationship of subordination between the superior and the subordinate, meaning the existence of authority of supervision, control, and direction.
- The subordinate’s fault must occur during the performance of his duties or because of them.
In such cases, liability is established if the subordinate commits a fault that causes harm to others, provided that fault, damage, and causal link are all present.